Amendments to Federal Rules on Expert Discovery Expected in 2010

January 8, 2010
Client Alert Newsletter Forecast 2010

Initially proposed in 2008, new amendments to Rule 26 of the Federal Rules of Civil Procedure were transmitted to the U.S. Supreme Court in December with a recommendation that they be approved and transmitted to Congress. Unless rejected, the amendments are scheduled to take effect on December 1, 2010.

Under the amendments, work product protection will be extended to drafts of expert reports and, with three exceptions, to the discovery of communications between testifying expert witnesses and counsel. The exceptions are: (1) communications regarding compensation; (2) communications identifying the facts or data counsel provided to the expert and that the expert considered in forming the opinions to be expressed; and (3) communications identifying any assumptions that counsel provided to the expert and that the expert relied upon in forming the opinions to be expressed. Discovery regarding attorney-expert communications on subjects outside of these three exceptions, or regarding draft expert reports, will be permitted only in very limited circumstances and by court order.

According to the Committee on Rules of Practice and Procedure, the amendments are intended to address the "artificial and wasteful discovery-avoidance practices" brought about as a result of the 1993 amendments to Rule 26, which a number of courts interpreted to permit discovery of all communications between counsel and expert witnesses and all draft expert reports. Those discovery avoidance practices include counsel retaining two sets of experts – one to consult and one to provide testimony – and attorneys taking "tortuous steps" to avoid having the expert generate anything other than a single, final report.

The amendments also address witnesses such as treating physicians, who will provide expert testimony but who are not required to provide an expert report because they are not retained or specially employed to provide such testimony, or they are not employees who regularly give expert testimony. Under the amended rule, the attorney relying on such a witness will need to disclose the subject matter of the witness's testimony and summarize the facts and opinions that the witness is expected to offer.